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  • Many of you in this room have been reading in the

  • papers over the last few days about what's going on in Syria.

  • And probably you are as appalled as anyone else

  • of the images of mass killing on all sides,

  • of the taking of innocent life of children, women,

  • completely defenseless people.

  • And you're probably asking yourselves:

  • "Why isn't anything being done to stop it?"

  • I want to talk a little bit about the system of international rules

  • that allows you to begin to answer that question.

  • And I want to do it by reference to a case to have come to,

  • as I conclude, that took place ultimately in the Houses of Parliament.

  • The judgment given in November 1998

  • in a case that many of you would be familiar with involving

  • senator Augusto Pinochet. Decisive moment that goes

  • very closely to the kinds of issues we're talking about

  • when we ask the question:

  • "Why isn't president Assad being stopped from killing?"

  • I work as an international lawyer. You've probably have

  • heard about international law. You probably don't know

  • a huge amount about what international law is.

  • It's traditionally described as the rules that govern

  • the relations between states.

  • I wake up in the morning, I switch on my computer,

  • I have emails about the sort of cases and issues that I'm involved in:

  • the protection of human rights in the former Yugoslavia, the cases of Vukovar;

  • the right to return of the Chagossians to the Island of Chagos,

  • part of the decolonization problems involving

  • the United Kingdom and a load of other cases.

  • And classically the world that I deal with,

  • is a world between states,

  • it's a world which governs relations between

  • the two hundred or so countries that occupy the world.

  • If you were to step back from this planet, jump up to the moon,

  • and look at how we organize ourselves

  • you'd think it's pretty weird.

  • We've divided ourselves into about two hundred countries

  • and the basic idea of international law is that

  • within those two hundred countries -- and it used to be

  • only forty or fifty in the 18th and 19th centuries --

  • states, governments are free to do whatever they want

  • to their citizens.

  • They can torture them, they can kill them,

  • they can disappear them,

  • they can adopt rules saying that, you know:

  • "every female over the age of sixty is going to be killed,"

  • "every male under the age of fifteen is going to be killed."

  • The classic rules of international law are predest on

  • the concept of sovereignty, the power -- absolute power of the state.

  • That changed dramatically in the 20th century

  • and it's the idea that is at the heart of that change,

  • the idea that finally gives a role and a place for an individual

  • that is at the heart of the answer to the question that I post at the outset

  • and that dominates the answer to that question.

  • It's the one that I want you to think about.

  • What happened? We know about the atrocities in Stalin's Soviet Union.

  • We know about the atrocities in Germany

  • and in many occupied countries in the '30s and in the '40s

  • and the argument of the government of those countries

  • at the time was: "Well, we may have domestic rules

  • that limit what we can do but there's no rule of

  • international law that stops the killing."

  • Individuals have no rights.

  • A very small number of people in the middle part of the 20th century

  • started developing the idea that actually individuals did have rights.

  • And the rights of individuals were exercisable against state.

  • For the first time, ever, the very recent idea

  • an individual could stand up and say:

  • "You Mr President are not allowed to do that.

  • You are subject to constraints, not the constraints of

  • your domestic legal order but the constraints of

  • your international legal order."

  • And that's what culminated in the creation of instruments

  • that many of you are very familiar with:

  • the Universal Declaration on Human Rights,

  • the European Convention on Human Rights and then

  • other instruments that emerged in the late 1990s like

  • -- also in 1998 the year of the Pinochet case,

  • the statute of the International Criminal Court.

  • In fact that was the year that was vital for another reason,

  • in that same year - 1998 - for the first time ever,

  • for the first time in human history, a serving head of state

  • was indicted by an international court:

  • Slobodan Milošević. It had never happened before.

  • Now that is a vital change. A change which is premised on

  • the very simple idea that individuals have rights against their state.

  • That was a development that was hard fought for

  • and which, I have to say right now, is under challenge

  • and under threat. Why? Well, many of you remember

  • the events of September 11th

  • and with the events of September 11th a number of governments

  • that had been at the heart of promoting the idea that

  • "every human person has rights", an idea reflected for the

  • first time in a very obscure document called

  • the 'Atlantic Charter' adopted in 1941 by Churchill and

  • Roosevelt, that idea that "every individual has rights,

  • whoever they are, wherever they may be, in whatever

  • circumstance they may find themselves in" is now under

  • threat from those who promoted the very idea.

  • Why is it under threat? Well, many of you are familiar with

  • the stories about banging people up because they are alleged

  • to be terrorists and holding them without charge

  • indefinitely for the rest of their lives -- I wrote a book about that.

  • About and individual Mohammed al-Qahtani arrested in

  • 2002 still detained at Guantanamo, has not being charged,

  • has no release date and it appears will be held for the rest

  • of his natural life because of a 'so called' war on terror.

  • You're familiar with the idea of "drones", the idea that

  • all of a sudden because we are 'at war'

  • we are free as a nation,

  • or as Americans, to define individuals who pose

  • a threat to our society and just take them out.

  • Other people call that extrajudicial killing.

  • It's done in Afghanistan and it's extended beyond the war-zone

  • to places like Pakistan and to places like Yemen.

  • Well, if you are going to take people out

  • because they are alleged Al Qaeda individuals in Pakistan

  • why not do it in Edgware? Where do the limits stop?

  • When you start deciding you are simply going to eliminate those

  • individuals abandoning the rules that were put in place

  • in that remarkable period in the decade after

  • the Second World War.

  • So, we face a fundamental challenge in relation to

  • whether we care about these rights. The idea the individual

  • is now an actor on the international stage and has rights

  • exercisable not only in relation to his or her fellow individuals

  • but against the state. And rights not just before national courts,

  • rights before an international court and international instances.

  • That was a hard fought victory in the 1940s

  • it was unique, for millennia there had not been such rights

  • and yet there are now people in this country, too

  • in this parliament also who say the time has come for

  • the United Kingdom to withdraw from the European Convention

  • on Human Rights. Because, why? Because they don't like

  • judgments about prisoners' voting rights or they don't like

  • the way in which certain immigrants are allowed to have

  • certain rights but that is the essence of human rights.

  • That is the essence of the system that was put in place,

  • is that no one falls into a black hole.

  • Everyone has minimum rights at all times and in all circumstances.

  • And at the heart of that idea is the place of

  • every human individual having indivisible rights to be exercised at all times.

  • Now, I mentioned this building Parliament and why it was significant.

  • On the 24th of November 1998 I was involved

  • in receiving a judgment in a case that I've been involved in --

  • the Pinochet case. And in sense the case articulated the

  • moment when the idea of individual rights became very real.

  • What was an issue? Some of you will remember what happened.

  • Senator Pinochet came to the United Kingdom, for medical treatment.

  • He took tea with some rather powerful friends and

  • then one day out of the blue a knock came on the door

  • and he was arrested. Arrested for allegations of international

  • crimes committed in Chile very far away not even against

  • British nationals.

  • The idea was posited on something called 'universal jurisdiction'

  • the idea that some crimes: torture, disappearing, killing on a significant scale,

  • crimes against humanity that are so terrible

  • that any country can exercise jurisdiction in relation to those crimes.

  • And a Spanish prosecuting judge decided to indict

  • senator Pinochet for those crimes and he was in England,

  • an arrest warrant was issued seeking his extradition to Spain.

  • Senator Pinochet did exactly what one would

  • expect him to do, he said: "You can't arrest me, I am the State."

  • That's the 19th century view of international law.

  • 'L'Etat, c'est moi.' I have absolute power and you

  • the English courts, the Law lords on the House of Lords are

  • not entitled to overwrite my immunity.

  • The case was argued for quite a few days and a couple of

  • weeks after it was argued we trot it off to

  • the Chamber of the House of Lords, when the grand all traditional

  • has changed now, we got a Supreme Court,

  • five Law Lords stood up in turn to give the judgment.

  • It was the single most decisive

  • and defining moment of my professional life

  • in which the system of international rules, the old system, was cast away.

  • Never before had any former head of State been held

  • in the courts of this country or any other country outside

  • his own to be not entitled to claim immunity for a mass crime.

  • And the Law Lords took their vote, very soon on we would

  • two nail down. Two out of the five had voted for immunity.

  • And then it was 2-1 and then it was 2-2 and there was one

  • judge left to express a view and at the moment when

  • that judge articulated his view things were very finely balanced.

  • You go with the old system: absolute immunity for former head of State.

  • Or do you go with the new system?

  • The system that says individuals have rights

  • and that right includes the right to proceedings, legal proceedings against

  • people who commit crimes that are particularly heinous.

  • And the fifth judge -- the fifth judge said 'no immunity'

  • and at that moment you can hear, you can still see it on

  • the CNN website, the BBC website if you go to the archive

  • there was certain sharp intake of breath.

  • It was a remarkable moment because it was the moment

  • more than any other where one recognised that the system

  • had indeed changed and there's no room for complacency.

  • A lot has happened since then. It's extraordinarily important

  • that we do not lose the right of individuals to be protected

  • against their own governments at any time.

  • Every single person in Syria who is subject today in Homs

  • or elsewhere, to the kind of heinous terrible indiscriminate attacks

  • that are taking place is entitled to turn around to us

  • and to say, to us and to our governments:

  • "You adopted a new system in the middle of the last century,

  • you are required to respect that system

  • and you are required to protect us from this kind of

  • system that is taking place."

  • That is the new system of international law.

  • That is the new set of rules that were talked about

  • for the person who spoke, sang wonderfully credibly movingly

  • just before me.

  • That is a system which reflects a single idea:

  • the place of the individual in international society.

  • And I invite you all to think about it

  • and to defend it with everything you have.

  • Thank you very much.

  • (Applause)

Many of you in this room have been reading in the

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【TEDx】What are your universal rights? Philippe Sands at TEDxHousesofParliament

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    阿多賓 posted on 2014/04/24
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